An introduction of port state control in Vietnam

World Maritime University The Maritime Commons: Digital Repository of the World Maritime University World Maritime University Dissertations Dissertations 1999 An introduction of port state control in Vietnam Minh Duc Tran World Maritime University Follow this and additional works at: http://commons.wmu.se/all_dissertations Part of the Admiralty Commons Recommended Citation Tran, Minh Duc, "An introduction of port state control in Vietnam" (1999). World Maritime University Dissertations. 337. http://commons.wmu.se/all_dissertations/337 This Dissertation is brought to you courtesy of Maritime Commons. Open Access items may be downloaded for non-commercial, fair use academic purposes. No items may be hosted on another server or web site without express written permission from the World Maritime University. For more information, please contact library@wmu.se.

WORLD MARITIME UNIVERSITY Malmö, Sweden AN INTRODUCTION OF PORT STATE CONTROL IN VIETNAM By TRAN MINH DUC Socialist Republic of Vietnam A dissertation submitted to the World Maritime University in partial fulfilment of the requirements for the award of the degree of MASTER OF SCIENCE in MARITIME SAFETY AND ENVIRONMENTAL PROTECTION Administration Specialisation 1999 Copyright Tran Minh Duc, 1999

DECLARATION I certify that all the material in this dissertation that is not my own work has been identified, and that no material is included for which a degree has previously been conferred on me. The contents of this dissertation reflect my own personal views, and are not necessarily endorsed by the University.... 20 August 1999... Supervised by: Mr Jan Åke Jönsson Associate Professor Maritime Safety and Environmental Protection Course World Maritime University Assessed by: Mr Dick Hodgson Associate Professor Maritime Safety and Environmental Protection Course World Maritime University Co-Assessed by: Mr Tom Evers Senior Ship Surveyor Swedish Maritime Administration ii

ACKNOWLEDGEMENT This dissertation is prepared during the two-year study at WMU, which is the result of the personal effort and the limitless support of various organisations and individuals. I would like to take this opportunity to express appreciation to these organisations and individuals for their contributions. My deepest gratitude goes to The Global Foundation for Research and Scholarship (GFRS) for granting me the two-year scholarship, without which my dream of studying in the World Maritime University (WMU) would not come true Mr Nguyen Bao Son, Director General of Vietnam Marine Petroleum Transport and Supply Company (MAPETRANSCO) for his nomination for the course Mr Nguyen Kim Viet, Deputy Manager of the Department for ISM Certification, Vietnam Register (VR), for his co-nomination, and his advice and encouragement during the two years in the WMU My parents, my brother, my wife and Thuy Duong--my little daughter--for their endless love and encouragement I also want to express my special thank to Mr Jan Åke Jönsson, Associate Professor, Maritime Safety and Environmental Protection Course, World Maritime University for his supervising this dissertation Mr. Dick Hodgson, Associate Professor of Maritime Safety and Environmental Protection Course, World Maritime University, for his assessing this dissertation iii

Mr. Tom Evers, Senior Ship Surveyor of Swedish Maritime Administration, for his co-assessing this dissertation Ms. Jeanne Ott, English Instructor, for her assistance during IELP program and her correction of this dissertation People who work at WMU for their effort in organising lectures, field studies, and providing the enjoyable stay in Malmö My friends in Vietnam and in the WMU for their support and encouragement iv

ABSTRACT Title of Dissertation: An Introduction of Port State Control in Vietnam Degree: MSc This dissertation is a study of the port State control mechanism and performance of the Vietnamese maritime administration in respect of port State control implementation. By various methodologies the port State control mechanism is reviewed in a transparent way. The dissertation examines the characteristics of port State jurisdiction and examines the responsibilities of each party involved in implementation of port State control procedures. A brief look of regional MOUs is presented. The study further compares two MOUs--the Paris MOU and the Tokyo MOU--to give readers a more specific picture of the Tokyo MOU. The Vietnamese maritime administration is reviewed from overall framework to performance of some specific bodies, like the VINAMARINE and the VR. Some analyses are also made in certain important areas. Then the study points out the problem areas in the Vietnamese maritime administration which are not only affecting port State control implementation but also flag State exercises. The Chapter 5, Conclusions and Recommendations, examines the results of the study. Recommendations are made toward improving the effectiveness of the Vietnamese maritime administration and in particular improving port State control implementation which has started recently. KEYWORDS: VINAMARINE, port State control, classification society, Tokyo MOU, Inspection, Vietnamese maritime administration. v

TABLE OF CONTENTS Declaration Acknowledgements Abstract Table of Contents List of Tables List of Figures Glossary of Terms ii iii v vi ix x xi 1 Introduction 1 1.1 Necessity of Dissertation 1 1.2 Objectives 3 1.3 Scope 3 1.4 Methodology 4 1.5 Difficulties 5 2 Background to Port State Control 6 2.1 General 6 2.1.1 What is Port State Control? 6 2.1.2 Why Port State Control needs to be Introduced and Expanded? 7 2.1.3 Port State Enforcement Regime 8 2.1.4 Port State Control Framework 11 2.1.4.1 Responsibilities and Obligations of Flag State 12 2.1.4.2 Responsibilities and Obligations of Port State 13 2.1.4.3 Identification of Substandard Ships 14 2.1.4.4 No More Favourable Treatment 14 2.1.5 Regional PSC Agreements 15 2.2 Tokyo MOU 16 2.2.1 Development of the Tokyo MOU 17 vi

2.2.1.1 Why Vietnam Not a Member of 18 Tokyo MOU PSCC from Beginning? 2.2.2 Tokyo MOU in Comparison with Paris MOU 19 2.3 Conclusions 20 3 Vietnam Maritime Industry 25 3.1 Maritime Administration 25 3.1.1 Government Organisation 25 3.1.1.1 Overall Responsibility for Transport 25 3.1.1.2 Role of Vietnam National Maritime Bureau 29 3.1.1.3 Co-operation between Coastal Shipping and 32 Inland Waterways 3.1.1.4 Role of Vietnam Register (VR) 36 3.1.2 Rules and Regulations 37 3.1.2.1 Maritime Code 37 3.1.2.2 International Conventions 38 3.1.2.3 Other Decrees 39 3.1.3 Inspection System 39 3.1.3.1 General 39 3.1.3.2 Law and Regulations 39 3.1.3.3 Ship Inspection 40 3.1.3.4 Training 42 3.2 Vietnamese Fleet 42 3.3 Conclusions 44 4 Port State Control Implementation: a Vietnamese Approach 46 4.1 General 46 4.2 Legislation 46 4.3 Administrative Structure 48 4.4 Training 51 4.4.1 Minimum Criteria for a PSCO 51 4.4.2 Training Program 52 4.5 Communication 53 vii

4.6 Procedure of Inspection, Rectification and Detention 53 4.7 Conclusions 57 5 Conclusions and Recommendations 58 5.1 Conclusions 58 5.2 Recommendations 59 5.2.1 Legislation 60 5.2.2 Maritime Administration 62 5.2.3 Classification Society 63 5.2.4 Operators 64 Bibliography 66 Appendices Appendix 1: Laws and Regulations Concerned with 68 Maritime Transport Appendix 2: Memorandum of Understanding on Port State Control 74 in the Asia Pacific region Appendix 3: PSC Forms 84 viii

LIST OF TABLES Table 1.1: Statistics of PSC Inspections within Tokyo MOU 2 Table 2.1: Comparison of Agreements of Port State Control 22 Table 2.2: Status of Relevant Instruments 23 Table 2.3: Status of MARPOL 73/78 24 Table 3.1: Number of Ships Registered under VR 41 Table 3.2: Vietnamese Fleet Size Distribution by Types of Ships 42 Table 3.3: Age Distribution of Vietnamese Fleet 43 ix

LIST OF FIGURES Figure 3.1: Organisation Chart of Ministry of Transport 27 Figure 3.2: Maritime Administration Framework 28 Figure 3.3: Organisation Chart of VINAMARINE 30 Figure 3.4: Organisation Chart of Inland Waterway Bureau 33 Figure 3.5: Organisation Chart of Vietnam Register (VR) 35 Figure 4.1 Proposed Structure of VMSI 50 Figure 4.2: Flow Chart of Port State Control 54 Figure 4.3: PSC Recommended Procedure 56 x

GLOSSARY OF TERMS ADB Asian Development Bank ATN Aid to Navigation COLREG Convention on the International Regulations for Preventing Collisions at Sea EEZ Exclusive Economic Zone ESCAP Economic and Social Commission for Asia and the Pacific EU European Union FOB Flag of Convenient GFRS Global Foundation for Research and Scholarship GT Gross Tonnage GMDSS Global Maritime Distress and Safety system IMO International Maritime Organisation ILO International Labour Organisation ILO No. 174 Merchant Shipping (Minimum Standards) Convention, 1976 ISM Code International Safety Management IWB Vietnam Inland Waterway Bureau LOADLINES International Convention for the Safety of Life at Sea MAPETRANSCO Maritime Petroleum Transport and Supply Company MARPOL International Convention for the Prevention of Pollution from Ships MOT Ministry of Transport MOU Memorandum of Understanding MOP Ministry of Finance MPI Ministry of Planning and Investment PMU Project Management Unit PSC Port State Control PSCC Port State Control Committee PSCO Port State Control Officer RDITI Research and Design Institute of Transport Industry RITST Research Institute of Transport Science and Technology xi

ROCRAM SMA SOLAS STCW TEDI TESI TONNAGE TS UNCLOS VINALINES VINAMARINE VINASHIN VMS VMSI VMU VNR VR VRA WATCO WMU Operative net of Regional collaboration among Maritime Authorities of South America, Mexico and Panama Swedish Maritime administration International Convention for the Safety of Life at Sea International Convention on Standards for Training, Certification and Watchkeeping for Seafarers Transport Engineering Design Institute Transport Economic Science Institute International Convention on Tonnage Measurement Territorial Sea United Nations convention on the Law of the Sea Vietnam National Shipping Lines Vietnam National Maritime Bureau Vietnam Shipbuilding Industry Corporation Vietnam Maritime Safety Agency Vietnam Maritime Safety Inspectorate Vietnam Maritime University Vietnam National Railways Vietnam Register Vietnam Road Administration Bureau Waterways Transport Company World Maritime University xii

Chapter 1 INTRODUCTION 1.1 Necessity of Dissertation Vietnam is a country which traditionally has a very closed relationship with maritime transport due to the fact that it has a long coastline--3620 km--embracing the eastern part of the Indochina peninsula. The maritime industry was appeared very early in its history and has experienced many up and down periods. In modern times the maritime industry always is an important sector in Vietnam. However there are still a great number of things which must be done to improve the maritime industry in Vietnam. It is observed that international organisations including International Maritime Organisation (IMO) and International Labour Organisation (ILO) have been working very effectively and have introduced a considerable number of rules and regulations which predominantly cover all respects to ensure maritime safety and environmental protection. Many indications show the effects of these rules and regulations to the maritime industry. For instance, the number of annual maritime accidents has been reduced. However, accidents still keep occurring with the refrain of numbers of technical failures. Although the numbers of technical failures causing casualties has been reduced, it still remains at 20% of accidents. Therefore, it is necessary to set up a safeguard ensuring ships comply with conventions governing maritime safety and environmental protection. Port State control is an excellent mechanism for this purpose. Again, another issue arises, which is how to exercise port State 1

control properly to really maintain standards of shipping and unification of sanction to violations to conventions. This dissertation will partially propose the approach to solve this matter in Vietnam. Table 1.1: Port State Control Inspections within Tokyo MOU (Figures relevant to Vietnamese flag) Year Number of inspected Number of ships with Number of deficiencies Number of ships Detention percentage ships deficiency detained 1994* 19 2 10.5% 1995** 39 35 310 11 28.2% 1996*** 51 43 637 28 54.9% 1997**** 55 46 605 22 40 % Source: (*) Cong Duc, 1998. (**) Tokyo MOU, Annual Report 1995 (***) Tokyo MOU, Annual Report 1996 (****) Tokyo MOU, Annual Report 1997 Since 1982, when the European Memorandum of Understanding on Port State Control (Paris MOU) was signed, and especially since 1994, when the Asia-Pacific Memorandum of Understanding on Port State Control (Tokyo MOU) entered into force, Vietnam has faced a serious problem, which is that the number of Vietnamese ships detained by port States keeps increasing. According to statistics of Tokyo MOU, the percentage of Vietnamese ship detention was 10.5% in 1994. This figure went up to 54.9% in 1996, and in 1997 it was 40%. The detailed figures are show in the Table 1.1. In the context of Vietnam, almost all the ships engaged in international trade belong to state owned companies, which are entirely or partially controlled by the government in one way or another. Therefore, the Vietnamese maritime administration including Ministry of Transport (MOT), Vietnam National Maritime Bureau (VINAMARINE) and Vietnam Register (VR), who have regulatory functions and functions of advisement to the government about the development of the maritime industry, is responsible to address this matter. There 2

is a need to clearly define the responsibilities of each organisation to deal with port State control implementation. This is what this dissertation is written for. In addition, fifteen previous dissertations of Vietnamese graduates from WMU have not dealt with port State control matters. Therefore, the author feels there is a need to help his colleagues and people who work in the maritime sector in his country to be aware of the importance of port State control procedures and understand the port State control mechanism, or at least draw more attention to matters of port State control implementation, which is more and more crucial to eliminating substandard ships, improving the effectiveness of the Vietnamese maritime industry. 1.2 Objectives It is important to make clear to readers that this dissertation does not intend to build up a comprehensive plan to set up port State control systems in Vietnam. The dissertation focuses on three main objectives: (1) To provide basic knowledge and principles of the port State control mechanism in a transparent way; (2) To identify difficulties in the process of setting up port State control in Vietnam, and to propose a Vietnamese approach to implement the PSC procedure; (3) To draw some recommendations for improving the efficiency and effectiveness of the Vietnamese maritime administration and improving the port State control procedure implementation in Vietnam. 1.3 Scope This Dissertation consists of five chapters that can be summarised as follows: Chapter 1 contains the background information, the necessity of the dissertation, the objectives, the methodology and the scope of the study. It also describes some difficulties that the author has had to cope with while doing this dissertation. 3

Chapter 2 gives background knowledge on port State control in principle and explains how the port State control mechanism works and what the responsibilities of each party involved are. The chapter also gives some information about Tokyo MOU in comparison with Paris MOU. Chapter 3 presents the current situation of the Vietnamese maritime industry. Furthermore, it analyses some weaknesses in the maritime administration, legislation, and operation. Chapter 4 presents an approach for Vietnam to implement port State control procedures, taking into account the facts and analysis in Chapter 3. The chapter suggests a practical procedure for port State control and gives an administrative structure of Vietnam Maritime Safety Inspectorate (VMSI) to conduct port State control inspections. Chapter 5 gives some conclusions and recommendations to improve the effectiveness of the maritime administration and port State control procedure implementation. 1.4 Methodology This study is entirely based on the following: reference materials available at the World Maritime University library; studies on the profiles of other countries port State control procedures undertaken and delivered by various resourceful persons; reference materials collected from the MOT, VINAMARINE, VR; field studies to a number of maritime administrations, including field studies to Japan, Germany and the Nordic countries; the personal knowledge of the author gained during his working period and studies at WMU The methods used to carry out the study include the following: 4

describing the existing situation of the Vietnamese maritime administration; analysing problems and causes; discussing with and interviewing experts on port State control and persons in charge from the Vietnamese maritime administration; generating personal arguments. 1.5 Difficulties The dissertation has been prepared during the two years studies at WMU. It, therefore, has been a great difficulty to access updated information in Vietnam. In addition, the author himself is not an administrator or a civil servant. Hence, his opinion is the view of a customer of the Administration and he has difficulty to interview people at high rank of organisations, such as Chairman of the VINAMARINE, or Director General of the VR. Furthermore, this dissertation is written in English, which is not the mother language or working language of the author. Therefore, there are possibly some points that are not properly expressed or may be misleading. After finish this dissertation as partial fulfilment of graduation requirement, the author will still be seeking for and welcoming comments and critiques from professors, his colleges and people who are interested in the subject to improve this work. 5

Chapter 2 BACKGROUND TO PORT STATE CONTROL 2.1 General 2.1.1 What is Port State Control? There are numbers of definitions of port State control in many maritime books, theses, and periodical issues. Among them, the definition given by Mr John Hare in his article, which first appeared in Volume 26, Issue 3 of the Geogia Journal of International and Comparative Law--Special Admiralty Issue, 1997, is one that best describes the Port State Control concept: "Port State Control" as a concept, involves the powers and concomitant obligations vested in, exercised by, and imposed upon a national maritime by international convention or domestic statute or both, to board, inspect and where appropriate detain, a merchant ship flying a flag foreign to that state in order to ensure compliance by that ship with all applicable international safety at sea and environmental protection instruments and with relevant domestic legislative maritime safety requirements. (John Hare, 1997) Before going to further discussion, it is also important to know what port State means. Like flag State and coastal State, port State is contextual definition vis à vis ship: flag State is the state whose nationality is held by a ship 6

coastal State is the state within whose maritime zone a foreign ship is for the time being. port State is the state in whose port or off-shore terminal a foreign ship is for the time being. 2.1.2 Why Port State Control needs to be Introduced and Expanded? Primarily, only the flag State has exclusive jurisdiction over ships holding its nationality. However, shipping is a very international industry. A ship flying the flag of one country trades in many other countries waters. This characteristic makes it very difficult for flag State to exercise its control fully and effectively over its ships. In addition, the introduction of Flag of Convenience (FOC) leads many states to turn a blind eye to the condition of the vessels. In practise, no maritime administration has sufficient resources to maintain control over its ships, especially ships engaged in international voyages. Consequently, the technical condition of ships may go out of the hand of flag States. This ultimately endangers the safety of the ships themselves and the environment of the waters and the ports or the offshore terminals they call at. To compensate, many flag States use the international network of qualified surveyors maintained by classification societies. With the assistance of classification societies, flag States are more confident, but again, many casualty reports show the causes of these casualties are deficiencies in technical condition of the ships or the lacks of skills or qualifications of the masters or crew. Maritime casualties very often accompany with impacts on marine environment of coastal States or port States. The United Nations Convention on the Law of the Sea (UNCLOS), on one hand, confers the right of innocent passage to all foreign ships. On the other hand, it gives coastal States the right to exercise the jurisdiction in respects of environmental protection over ships in its Exclusive Economic Zone (EEZ) or territorial sea (TS). Port States have the right to set up any requirement, which does not go beyond the international acceptances, over ships that wish to enter its internal water, including its ports and terminals. 7

The IMO Resolution A.466 (XII)--Procedure for the Control of Ships--and resolution A.787 (19)--Procedure of Port State Control--formed the basis of port State control. The idea of port State control is to maintain ship control in respect of ship safety and environmental protection and to unify sanctions against violations of international conventions. At the same time, port State control is a follow-up activity of flag State control. Furthermore, the memoranda of understanding (MOUs) provide guidelines for harmonisation of port State control inspections, promotion of surveyor training exchange and strengthening of communication between maritime authorities within regions and world-wide. Mr William O' Neil the current Secretary General of IMO, who deeply understood the need of introduction and expansion of PSC implementation, had emphasised in the World Maritime day 1996 Shipping is an international industry which is proud of its tradition of freedom of the seas, but that does not mean that ships can sail wherever they like regardless of their condition. The maritime world has the right to expect that ships of all nations meet the levels of safety and environmental protection which have been internationally agreed upon. It is up to shipowners to make sure that their ships are safe, properly manned and do not pollute the seas. And it is the duty of governments to make sure that ships which fly their flag comply with the standards laid down in the IMO treaties which they have ratified. If they fail to do so, then IMO -- which has the stewardship of these standards -- has not only the right but also the obligation to take further action. (William O' Neil, 1996) 2.1.3 Port State Enforcement Regime Historically, under the floating island doctrine, only the flag State had exclusive jurisdiction over ships holding its nationality. There are now instances of dual or concurrent jurisdiction with the arising of coastal and port State jurisdictions (Mukherjee, 1998). Port State jurisdiction was first introduced for detailed international consideration at the 1973 IMO Conference on Marine Pollution (Kasoulides, 1993). Formulation of the port State authority of a coastal State, which 8

was laid down in the United Nations Convention on the Law of the Sea (UNCLOS), is now included in a number of maritime conventions, such as the 1966 Load Lines Convention (LL 66), the MARPOL 73/78, the SOLAS 74/78, the ILO Convention No. 147, the STCW 95, the Dumping Conventions, the 1969 Convention on Civil Liability and the 1986 United Nations Convention on Condition for Registration of Ships. In those conventions, the port State has enforcement authority over the ship as it enters the port in question, regardless whose flag it is flying, in respect of control of ships and their equipment (SOLAS 74/78, Load Lines, MARPOL 73/78), control of discharges at sea (OILPOL, MARPOL, Dumping Conventions), control of crew competence and working conditions (ILO No. 147, STCW) and other requirements. On the other hand, port State jurisdiction meant that: a state may exercise enforcement jurisdiction over foreign ships in its ports in respect of offences against international rules and standards even if committed in sea areas beyond its coastal jurisdiction... even if the violations were committed on the high seas (or foreign waters) and they did not in any way affect the port State the latter would be entitled to take enforcement action against the vessel concerned (Kasoulides, 1993,111). The main characteristics of the port State enforcement regime can be summarised as follows: (1) Voluntaryness: This is an essential element of the new regime. A port State can not compel a vessel on the high seas, or even in its own territorial waters or EEZ, to proceed to one of its ports and face proceeding. (2) Port and offshore terminals: The exercise of this power is restricted to these areas and does not include the functional internal waters area. (3) Investigation and adjudicative powers: The jurisdiction is engaged solely by reason of the voluntary presence of a delinquent or suspect vessel in its ports; 9

the enforcement prerogative, therefore, is primarily investigative and only secondarily adjudicative. (4) Discharge and pollution: The enforcement power is restricted to discharges from ships. These include accidental and intentional discharges of oil, noxious and hazardous substances in bulk or packaged form, sewage and garbage, i.e. discharges such as re-ballasting, tank cleaning activities and leaking from engines. (5) International waters: This procedure is to be followed only in the case of an incident with no territorial link to the port state. (6) Applicable international standards: The port State may only enforce standards that are either part of customary international law or laid down in maritime conventions on the related issue, e.g. MARPOL 73/78 discharge standards. This provision excludes resolutions, guidelines and codes that are not already incorporated in customary international law. (7) Competent international organisations: This is generally accepted to be the IMO; (8) A right to enforce: The port State has only a discretionary power to enforce and may decline to do so. (9) Discharge in foreign waters: No investigation may be undertaken except if the port State is so requested by another interested UNCLOS party. Even then, the port State must comply as far as practicable with a request. The coastal State could also ask for the suspension of such proceedings. (10) The role of the flag State: It may request the investigation of discharge violations by its vessels on the high seas or foreign waters. It may also decide to pursue legal proceedings in its national courts. The port State must interrupt its own proceedings if a flag State decides to do so (Art. 228 UNCLOS). (11) Penalties: Although the UNCLOS specifically refers to monetary penalties, the article 230(2) further suggests, by implication, that imprisonment can be ordered as sanction in the case of wilful and serious pollution of the territorial sea (Kasoulides, 1993). 10

2.1.4 Port State Control Framework Ensuring and improving safety on board ships and environmental protection require a comprehensive framework. Several parties are involved in these matters, namely national administrations, classification societies, owners and crew. Each party has different kinds of responsibility. (1) National administrations are responsible for taking the necessary measures to ensure ships flying their states' flag comply with provisions of the relevant conventions and to ensure the availability of reception and treatment facilities. Surveying and issuing certificates under international conventions are also responsibilities of national administrations. The national administrations also have to control foreign ships entering its port in respect of safety and environmental protection. In other words, national administrations must fulfil the obligations and responsibilities of flag states over ships flying their flags, and the obligations and responsibilities of port states over ships calling at their ports (to be further discussed in 2.1.4.1 and 2.1.4.2) (2) Classification societies are the recognised organisations, which are authorised by most of the national administrations to inspect ship designs, to carry out class surveys during and after construction of ships and to issue certificates under the international conventions. Classification societies act on behalf of national administrations. (3) The owners are responsible for a) ensuring their ships and crew comply with requirements of international conventions, b) providing sufficient financial support for the activities aiming at improving safety on board their ships, c) providing proper instructions to their ships in the form of manuals, d) maintenance of ships, 11

e) operating proper safety management systems as required in the ISM Code within their organisation, and f) collecting and presenting proofs and evidences in the case of an unduly detained ship. (4) The crew on board ships must be qualified, hold certificates of competence required under international conventions and by national administration (if any), and have enough skills and knowledge to fulfil the tasks that they have been assigned. They should always be looking for improvement of their skills through training and drilling. 2.1.4.1 Responsibilities and Obligations of Flag State Regarding flag State matters, the national administration is obliged and responsible (1) to enforce the international maritime standards which have been set in international conventions over all ships flying its flag; (2) to communicate with IMO about the list of non-governmental agencies which are authorised to act on its behalf, the text of law and regulations within the scope of conventions, and sufficient number of specimens of its certificates issued under international conventions; (3) to carry out ship surveys including initial, annual, intermediate and renewal surveys, and to issue certificates under international conventions; (4) to provide proper training for seafarers and issue certificates of competence; (5) to undertake the necessary arrangements for receiving reports from port states relating to ships flying its flag, and immediately replying to port states and to states whose interests are affected; (6) to instruct ships flying its flag to report incidents to its own national administration and to other state(s) concerned; (7) to carry out casualty investigation of ships flying its flag. 12

2.1.4.2 Responsibilities and Obligations of Port State The responsibilities and obligations of the national administration when acting as a port state are (1) to verify the certificates on board ships are valid and sufficient to the provisions of the international conventions, which are currently in force in the port State; (2) to accept all the valid certificates issued by flag State unless there are clear grounds to identify that the ship is a substandard ship (to be discussed in 2.1.4.3); (3) to take a further step to ensure the ship does not sail until it can proceed to sea without presenting a danger to the ship or persons on board, or without presenting an unreasonable threat of harm to the marine environment; (4) to report without delay to flag State about any action that has been taken related to ships flying its flag, and notice to IMO, to states whose interests are affected, and also to ILO in case of violation to ILO 147; (5) to ensure that no more favourable treatment is given to ships flying the flag of a non-party to an international convention; (6) to provide experienced and qualified port State control officers (PSCO) and all necessary arrangements to carry out port State control inspections; and (7) not to unduly detain or delay ships in its port otherwise port State will be liable for this. 2.1.4.3 Identification of Substandard Ships According to Resolution A.787(19) the basis for detaining a ship is that the ship is a substandard ship. A port state control officer can judge a ship as a substandard ship when he goes on board the ship and finds one or more of the items listed below: (1) the absence of principal equipment or arrangements required by the conventions 13

(2) non-compliance of equipment or arrangements with relevant specifications of the convention (3) substantial deterioration of the ship or its equipment because of, for example, poor maintenance (4) insufficiency of operational proficiency, or unfamiliarity of essential operational procedures by the crew (5) insufficiency of manning or insufficiency of certification of seafarers (6) any evident factor making the ship unseaworthy, or putting risk to the safety of the ship or lives of persons on board, or presenting a threat to the marine environment (7) the lack of valid certificates required by international conventions 2.1.4.4 No More Favourable Treatment The No More Favourable Treatment clause affects ships flying flags of non-parties and ships that are below convention size. The No More Favourable Treatment clause requires that (1) the flag State administration of a non-party must carry out surveys on and issue certificates to ships flying its flag at the equivalent level as ship surveys and certificates under international conventions; (2) all States must carry out measures to ensure ship safety and environmental protection over their ships below convention size; (3) a port State, when carrying out port State control inspections on ships calling at its ports or offshore terminals, must apply the port State control procedures set in the IMO resolution A.787(19), regardless of whether ships are entitled to flying the flag of a non-party or a party to international conventions. Furthermore, a port State must carry out equivalent inspections onboard ships below convention size. 2.1.5 Regional PSC Agreements 14

A Memorandum of Understanding (MOU) is an instrument of a less formal kind than a treaty and in the maritime context usually details operational arrangements or requirements dealing with technical matters. It relates to conduct or intention and is not legally binding, but it has a political and/or a moral force (Kasoulides, 1993). Practical experience shows that implementation of the PSC procedure is best done on a regional basis. There are some advantages to the concept of regional co-operation on PSC. These can be summarised as follows: (1) Maximum commitment is obtained from participating countries that share common safety and environmental interests. (2) The use of information available regionally is done more effectively. (3) Ships remain under surveillance as long as they operate in the region, thereby reducing the possibilities for sub-standard operations. (4) Operational costs are shared by all participating port States. (5) A harmonised approach to procedures lowers the burden on ship s staff and permits effective deployment of available resources of participating States. (6) Harmonised procedures prevent distortion of competition between regional ports. The first regional PSC agreement, covering Europe and the North Atlantic, was signed in 1982 and is known as the Paris Memorandum of Understanding (Paris MOU). The Latin American Agreement (Acuerdo de Viña del Mar) was signed in 1992; the Tokyo Memorandum of Understanding (Tokyo MOU), covering Asia and the Pacific, in 1993; the Caribbean Memorandum of Understanding (Caribbean MOU) in 1996; the Mediterranean Memorandum of Understanding (Mediterranean MO) in 1997; and the Indian Ocean Memorandum of Understanding (Indian Ocean MOU) in 1998. On 22 January 1999 eighteen West and Central African States agreed on a draft of Memorandum of Understanding (MOU) on port State control (PSC). This will result in the seventh MOU--West and Central African MOU--to be adopted in October this year (1999) in Nigeria. 15

Sooner or later, it is expected that the world will be covered by regional agreements, perhaps leading to the creation of a global system which will make it virtually impossible for sub-standard ships to escape detection. 2.2 Tokyo MOU The Memorandum was adopted in Tokyo on 1 December 1993 by the following maritime Authorities in the Asia-Pacific region: Australia, Canada, China, Fiji, Hong Kong, Indonesia, Japan, Republic of Korea, Malaysia, New Zealand, Papua New Guinea, the Philippines, the Russian Federation, Singapore, Solomon, Thailand, Vanuatu and Vietnam. The Memorandum came into effect on 1 April 1994. The main objective of the Memorandum is to establish an effective port State control regime in the Asia-Pacific region, through co-operation and harmonisation, to eliminate substandard ships so as to promote maritime safety, to protect the marine environment and to safeguard working and living conditions on board. A Port State Control Committee was established to monitor and control the implementation and on-going operation of the Memorandum. The Committee consists of representatives of the maritime Authorities, representatives from the International Maritime Organisation (IMO), the International Labour Organisation (ILO), the Economic and Social Commission for Asia and the Pacific (ESCAP), the Paris MOU and the United States. A permanent secretariat of the Memorandum was formed in Tokyo, Japan. For the purpose of the Memorandum, the following are provided as relevant instruments: (1) the International Convention on Load Lines 1966 (2) the International Convention for the Safety of Life at Sea, 1974 as amended (3) the Protocol of 1978 relating to the International Convention for the Safety of Life at Sea, 1974 16

(4) the International Convention for the Prevention of Pollution from Ships 1973, as modified by the Protocol of 1978 relating thereto (5) the International Convention on Standards for Training, Certification and Watchkeeping for Seafarers, 1978, as amended (6) the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (7) the International Convention on Tonnage Measurement of Ships, 1969 (8) the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147) 2.2.1 Development of the Tokyo MOU In the 80s and beginning of the 90s, in the Asia Pacific regions, port State control was conducted in several countries and territory like the Philippines, Japan, Australia, Canada, China and Hong Kong, but there was no regional co-operation between the maritime administrations of these countries. In 1982, the Paris Memorandum of Understanding on port State control was signed and implemented, attempting to reduce and eliminate operation of substandard ships in European waters and to ensure the safety of life at sea and the prevention of pollution. In 1991, the 17th Assembly of the International Maritime Organisation adopted resolution A.682, which, among other things, (1) recognised the contribution by port State control to maritime safety and pollution prevention made through regional co-operation under the European MOU, (2) urged members to form regional co-operation on port State control in other regions to contribute to the elimination of substandard ships and (3) invited governments to consider regional arrangements on port State control. Having considered the European experience and in response to IMO resolution A.682, countries in the Asia Pacific region realised the need of having a port State control agreement in the region to harmonise their inspection procedures and improve port State control for those who already had it in place and encourage the others to implement port State control. 17

As a result, in December 1993, the Asia Pacific Memorandum of Understanding on port State control, also called the Tokyo MOU, was signed by eighteen participating maritime authorities in the region. It is agreed to establish the Secretariat of the Tokyo MOU which will locate in Tokyo. The Memorandum came into effect on 1 April 1994. 2.2.1.1 Why Vietnam not a Member of Tokyo MOU PSCC from Beginning? In 1993 the Vietnamese Government representatives signed the Tokyo MOU, but Vietnam still had an observer status to the Tokyo MOU until 1999. The reasons for this may rest on the lack of attention of the Vietnamese government to the maritime sector, the lack of consciousness of the impact of the MOU and the inefficient bureaucratic administration with the heavy burden of documentation work. One of the most active people who is anxious to convince the Vietnamese government to join the Tokyo MOU is Mr Nguyen Cong Duc the current Director of the Hai Phong Port Authority. He has made the proposal to VINAMARINE and has also been giving a number of speeches about this matter. In Chapters 3, shortcomings in the organisation and framework of the Vietnamese maritime administration will be further discussed. 2.2.2 Tokyo MOU in Comparison with Paris MOU Before the Tokyo MOU comes into existence, there were two agreements on port State control in place, namely the Paris MOU (signed on 2 March 1978) and the Latin America Agreement (signed on 5 November 1992). Generally speaking, the Tokyo MOU is similar to the Paris MOU in many aspects. As shown on the Table 2.1 (at the end of this chapter), they are all comprised by a number of countries in their regions. The target inspection rate of the Paris MOU is 25% annual inspections per country within 3 years from entry into force, the number for the Tokyo MOU is 25% annual inspections per country by the year 2000. However, the Tokyo MOU has several features different from that of the Paris MOU. 18

The Paris MOU members comprise European countries whose inspection capabilities and infrastructures are already in place for carrying out effective port State control. In addition, most of the European countries, particularly those participating in Paris MOU, are in the same level of economic development, which is categorised as industrialised. The maritime administrations of these countries also have high efficiency and effectiveness. Besides that, they possess large fleets of merchant ships with well-trained personnel. Finally, for countries who are members of the EU, the Paris MOU is made mandatory under a European Commission Directive (Ulstrup, 1999). In contrast, the Tokyo MOU participants are in very different levels of economic development and include developed countries (Japan, Canada), developing countries (Vietnam, China) and low level of development countries (Fiji, Solomon Islands). Therefore, the level of resources availability is not equal for all these countries. The highly developed countries own the very modern fleets, which can meet all the requirements of international conventions, while the fleets of the other countries have rather high average ages. This is almost impossible for those fleets, or they have to try very hard, to reach the technical standards stipulated by international conventions. Another feature comes from maritime administration. The capabilities of maritime administrations vary from country to country. Some of them have very good inspection systems and have already port State control in place, while many other do not. For instance, at the time of Tokyo MOU signature in 1993, in some of these countries, port State control had not been set up, even in the preparatory stages like Vietnam and Solomon Islands. Furthermore, the status of ratification of international conventions among the Tokyo MOU participants is not at the same level (see Table 2.2 and 2.3). Only a few countries such as Japan and South Korea have ratified all the seven relevant instruments, while many others have ratified four, five or six instruments. The Solomon Islands have ratified only two instruments--stcw 78 and COLREG 72. 19

This situation, obviously, leads the disunification of implementation of international conventions. The variation in stages of development, capabilities of the maritime administration and status of ratification put more difficulties toward the introduction of the Tokyo MOU in the region. On the other hand, it also gives more pressure to the harmonisation of implementing port State control procedures through unification of education and training for surveyors and the development of the regional manual for inspectors. 2.3 Conclusion It is universally acknowledged that once a ship voluntarily enters a port it becomes fully subject to the laws and regulations prescribed by the officials of that and that all types of vessels are obliged to comply with the coastal regulations about proper procedures to be employed and permissible activities within internal waters. Six memoranda of understanding on port State control have been signed in the world, aiming to help the flag State continuously control ships flying its flag by harmonising inspection procedures and unifying sanction against violations to the international conventions. Furthermore, they encourage states to ratify and implement international conventions. The memoranda also promote regional cooperation and training exchanges. Combating with resistance from external and internal sources, Vietnam has realised the benefits of implementing port State control procedures, and of having close regional co-operation. Early in 1999, Vietnam became a member of the Tokyo PSCC and started the process of setting up a port State control system in Vietnam. 20

Paris MOU Latin America agreement Participating Belgium, Denmark, Argentina, Brazil, Chilli, countries and Finland, France, Colombia, Ecuador, associate Germany, Greece, Mexico, Peru, members Iceland, Italy, Venezuela, Panama, Netherlands, Spain, Uruguay Norway, Poland, Portugal, Sweden, UK Co-operation Canada, Croatia, None country Japan, Russia, USA Target inspection rate Relevant instrument Special attention Amendments Information Centre Committee Table 2.1: Comparison of Agreements of Port State Control 25% annual inspection rate per country within 3 year from entry into force LL 1966 LL Prot 1988 SOLAS 1974 SOLAS Prot 78, 88 MARPOL 73/78 STCW 78 COLREG 72 TONNAGE 69 ILO No. 147 Passenger ships, Ro-ro ships, Bulk carriers, Ships may present a special hazard, Ships which have had several recent deficiencies, Ships flying the flag of a state appearing in 3 years rolling average table of delays and detention 15% annual inspection rate per country within 3 year from entry into force LL 1966 SOLAS 1974 SOLAS Prot 78 MARPOL 73/78 STCW 78 COLREG 72 Passenger ships, Ro-ro ships, Bulk carriers, Ships may present a special hazard, Ships which have had several recent deficiencies Asia Pacific MOU Australia, Canada, China Indonesia, Japan, Malaysia New Zealand, Fiji, Papua new Guinea, Philippine Russia, Vanuatu, Hong Kong, Thailand, Vietnam Solomon Island None 25% annual inspection rate per country by the year 2000 LL 1966 SOLAS 1974 SOLAS Prot 78 MARPOL 73/78 STCW 78 COLREG 72 TONNAGE 69* ILO No. 147 Will take effect 60 days Will take effect 60 days after acceptance after acceptance Saint Mallow, France Buenos Aires, Argentina Canada a representative of each a representative of each of the authorities and of of the authorities the commission of the EU Passenger ships, Ro-ro ships, Bulk carriers, Ships may present a special hazard, Ships which have had several recent deficiencies, Ships flying the flag of a state appearing in 3 years rolling average table of delays and detention, Ships which haven t been inspected by an Authority within 6 months Will take effect 60 days after acceptance a representative of each of the authorities Observers IMO, ILO IMO, ROCRAM IMO, ILO, ESCAP secretariat signed 2 March 1978 5 November 1992 2 December 1993 Official language English, French Spanish, Portuguese English Source: IMO news February 1994 (*) updated by 1998 amendment to Asia Pacific MOU text 21

Table 2.2: Status of Relevant Instruments (As at December 31 1997) Authority LOAD LINE 66 SOLAS 74 SOLAS PROT 78 MARPO L 73/78 STCW 78 COLREG 72 ILO 147 Australia 29/07/68 17/08/83 17/08/83 14/10/87 07/11/83 29/02/80 - Canada 14/01/70 08/05/78-16/11/92 06/11/87 07/03/75 25/05/95 China 05/10/73 07/01/80 17/12/82 01/07/83 08/06/81 07/01/80 - Fiji 29/11/72 04/03/83 - - 27/03/91 04/03/83 - Hong Kong China 16/08/72 25/05/80 25/11/81 11/04/85 03/11/84 15/07/77 28/11/80 Indonesia 17/01/77 17/02/81 23/08/88 21/10/86 27/01/87 13/11/79 - Japan 15/05/68 15/05/80 15/05/80 09/06/83 27/05/82 21/06/77 31/05/83 Republic of Korea 10/07/69 31/12/80 02/12/82 23/07/84 04/04/85 29/07/77 - Malaysia 12/01/71 19/10/83 19/10/83 31/01/97 31/01/92 23/12/80 - New Zealand 05/02/70 23/02/90 23/02/90-30/07/86 26/11/76 - Papua New Guinea 18/05/76 12/11/80-25/10/93 28/10/91 18/05/78 - Philippines 04/03/69 15/12/81 - - 22/02/84 - - Russian Federation 04/07/66 09/01/80 12/05/81 03/11/83 09/10/79 09/11/73 07/05/91 Singapore 21/09/71 16/03/81 01/06/84 01/11/90 01/05/88 29/04/77 - Thailand 30/12/92 18/12/84 - - - 06/08/79 - Vanuatu 28/07/82 28/07/82 28/07/82 13/04/89 22/04/91 28/07/82 - Solomon Island - - - - 01/06/94 07/07/78 - Vietnam 18/12/90 18/12/90 12/10/92 29/05/91 18/12/90 18/12/90 - Date of entry into force 21/07/68 25/05/80 01/05/81 02/10/83 28/04/84 15/07/77 28/11/81 Source: Tokyo MOU, Annual Report 1997 22

Table 2.3: Status of MARPOL 73/78 (As at December 31 1997) Authority Annexes I & II Annex III Annex IV Annex V Australia 14/10/87 10/10/94-14/08/90 Canada 16/11/92 - - - China 01/07/83 13/09/94-21/11/88 Fiji - - - - Hong Kong China 11/04/85 07/03/95-27/03/96 Indonesia 21/10/86 - - - Japan 09/06/83 09/06/83 09/06/83 09/06/83 Republic of Korea 23/07/84 28/02/96-28/02/96 Malaysia 31/01/97 - - 31/01/97 New Zealand - - - - Papua New Guinea 25/10/93 25/10/93 25/10/93 25/10/93 Philippines - - - - Russian Federation 03/11/83 14/08/87 14/08/87 14/08/87 Singapore 01/11/90 02/03/94 - - Thailand - - - - Vanuatu 13/04/89 22/04/91-22/04/91 Solomon Islands - - - - Vietnam 29/05/91 - - - Date of entry into force 02/10/83 01/07/92-31/12/88 Source: Tokyo MOU, Annual Report 1997 23